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Employment Discrimination
University of Connecticut School of Law
Bauer, Jon

Jon Bauer
Employment Discrimination
Spring 2010
       I.            Statistics
a.      Unemployment rate of blacks and latinos is 2X higher whites; Pager study; NY times article on black names
b.      Disc & market economy: Becker: market forces in long run should drive out disc behavior by employers so no need for disc laws
                                                              i.      Critiques: some situa. Where disc is efficient (statis disc)
Structure of VII:
    II.            Framework for federal disc claims on race, sex, nat’l origin, religion, color
Employer Defined in § 701(b)
Must engage in industry affecting commerce; 15+ employees
Includes any agent of employer
                                                              i.      Not defined by Title VII à look at agency law
1.       Person must act w/in scope of employment
2.       Employer had disc policies & supervisor disc anyway, then he was acting outside scope of agency:
a.       Counter this: prove employer had knowledge of disc & was condoning it
b.      Torts are w/in scope of empl if they are beneficial/in interest of employer
§ 703(a)
*§703(a)(1): “Employer Practices: It shall be unlawful employment practice for an employer—to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”
What: not hired, fired, change of terms/conditions of employment
                                                              i.      Doctrine of constructive discharge
1.       Reasonable employee is compelled to resign b/c of the situation
Why: b/c of race, color, sex, religion, nat’l origin (implies motivation)
                                                              i.      Direct ev
1.       If believed, it establishes all that’s needed
2.       A statement might do it
a.       “Colored ppl should stay in their places” is not 100% direct b/c need inference, but it’s so clear that most ppl would call it direct
                                                           ii.      Circumstantial ev
1.       Draw some inferences/make generalizations
2.       Persuasive, but not conclusive b/c there might be nondiscriminatory reasons
3.       Examples
a.       Transfer in black woman & excuse white woman
b.      Failure to give reason justifying act
e.      Slack v. Havens:
                                                              i.      πs = 4 black woman fired b/c refused to do heavy cleaning (out of job description), but white woman (w/ less seniority than 3 πs) was excused; Super made derogatory comments; relied on §703(a)(1)
                                                           ii.      H:: Ps won; P (1) showed that discharge was because of  (causation/motivation) race; (2) action was adverse effect on P, and (3) action was linked to employer
                                                         iii.      N: law treats acting on intent to treat ppl differently on racial grounds as impermissible, regardless of whether the motive is malign, benign, or neutral
                                                          iv.      N: if employer acts against person on generalization regarding race, wo pause to consider whether the gener is true, there is likely to be violation of VII
                                                             v.      PN: arguem for employer: fired for insubord; they quit;
                                                          vi.      PN: argum for Ps: not insubord bc impossible situ; constructive discharge; retaliation
f.        Minor 7th cir 2006 re: action needs to be materially adverse!
                                                              i.      Rule: employ action has to be materially adverse; material effect on terms/conditions of empl
                                                           ii.      Reason: stat doesn’t punish 4 day2day travails & disappoin;
                                                         iii.      Here: Older female sales rep had to work more for same pay à age & sex disc? PFC for individual DT requires a materially adverse employment action
1.       Working more for same pay (= 30% hourly wage decrease) is materially adverse
                                                          iv.      PN: Pros: docket control; easier to remedy tangible things; ↑ bus prosper.
                                                             v.      Cons: inconsistencies; no bright line rules;
                                                          vi.      N: here, would be disc if substantial eco impact; other advers actions: ↑ comuting time; not necessary eco impacts (segregating telemarters by race case=adverse)
g.      Enowmitang 1998 no materially adverse action here
                                                              i.      Re: P alleged disc based on NO; not provided with a computer, poor evaluation; no promo
                                                           ii.      H:: NO violation; P failed to rebut that employer’s reason was pretextual re promotion; reason for denying promotion was because of P’s GPA was not high compared to other applicants; -court said denying promotion can be disc but P failed to show this;
1.       Computer & bad evaluation claims: H: not material adverse action; action must materially alter the terms or conditions of employt; employer was not obliged to provide computer;
§706(g): sets forth broad array of equitable remedies available in VII
(g)(1): injunction or any other equitable relief as ct deems appr; relief is ordered by judge & is equitable; means no rt to jury trial; this is permissive “may”
                                                              i.      Restatement
                                                           ii.      Backpay
1.       Means: recovery of income lost due to employers disc (lost wages, raises, overtime; bonuses, vacation pay, retirement benefits
2.       From date of job loss to court decision
3.       Only go back 2 years from date of filing charge
                                                                                                                                      i.      Applies to pay disc b/c ongoing
4.       Duty to mitigate
a.       What did π earn?
b.      What could π have earned w/ reasonable diligence?
5.       Albermarle 1975:
a.       VII case; trial ct denied backpay bc D acted in GF & bc P asked inconsistently
b.      H:: backpay is discretionary; but it was reversible error to deny backpay based on employer acting in GF; rarely will ct deny backpay;
c.       Ct interpts §706(g)(1): says backpay is discretionary & so an equitable remedy (so judge must decide it)
                                                                                                                                      i.      Purposes of VII: (1) compensatory: make P whole again (2) prophylactic: deter & prevent disc by empl
                                                                                                                                    ii.      legis hx: congress goal was to prevent disc & compens victims & make them whole again; (ct invented this)
                                                                                                                                  iii.      but if π not entitled to relief if conduct has prejudiced Δ
d.      concur: 7th amend=rt to jury trial to suits at CL but not in equity; this is equity so backpay remedy is equitable.
e.       PN: ct thinks its wrong for employer to get off hook for acting in GF: bc to allow backpay only on showing BF would turn remedy into a punishment & would create moral turpitude
                                                         iii.      Front pay (pg 680 factors)
1.       Means: comp for loss of future salary & benefits
2.       Can be awarded if no job opening, waiting for new position to open (continues back pay until opening occurs) or if reinstatement is unfeasible (in lieu of reinstatement)
a.       Reinstatement is preferred in theory, but there’s a huge risk b/c of hostile environment
b.      Most reject bumping someone to reinstate π
c.       Reluctant to force Δ to create new job
3.       Duty to mitigate
4.       Cassino: ADEA
a.       How to determine front pay
                                                                                                                                      i.      Front pay is temporary
                                                                                                                                    ii.      Duty to mitigate: reduce by amount π could earn using reasonable mitigation efforts
                                                                                                                                  iii.      No expert needed on lost future earnings & decrease to present value
                                                                                                                                   iv.      Court decides whether to reinstate or award front pay
                                                          iv.      Retroactive seniority & benefits
1.       Franks:
a.       Πs sought to enjoin disc practices & to obtain instatement & retroactive seniority; trial ct granted 1st two, refused to grant senior; Δ picks ppl for driving positions based on seniority(date of hire); 
b.      I: whether seniority relief is ok under VII §706g?
c.       H:: π wins retroactive senior
d.      Purpose of VII is to make victim whole; w/o award of seniority dating from time when π was discriminatorily refused employment, π who applies for & obtains employ as driver will never obtain the driver position
e.       Concur & dissent in part: need to be careful when looking at competitive seniority bc (1) its done at expense of other employees bc this type of seniority doesn’t affect/deter Δ & only affects its innocent employees; (2) regular senior is ok bc only affects backpay & benefit-type so furthers purpose of VII but competitive seniority award benefits disc victims at expense of other workers &not the Δ
                                                             v.      Injunction prohibiting further disc
c.      §706(k): attorneys fees
                                                              i.      Permissive language – award to prevailing party
                                                           ii.      Christiansburg: VII
1.       ordinarily a P who prevails should get awarded AF unless there are extraordinary circumstances.
2.       Prevailing Δ in Title VII case gets atty’s fees if π’s case is frivolous/meritless even though not brought in subjective bad faith (factors when this happens p 706)
a.       Don’t discourage π from \ suit by awarding prevailing Δ atty’s fees all the time
                                                         iii.      Judge awards fees in post-verdict motion
                                                          iv.      Must be reasonable fee
                                                             v.      Not necessarily lmtd by π’s recovery
1.       Can be greater than π’s award
2.       But decrease or give nothing if only nominal damages awarded to π
                                                          vi.      Tax consequences
1.       1996 amendments to tax code say employment disc claims are taxable unless they result from physical injury
a.       Tax lost wages, compensatory damages, etc.
2.       2007 change for civil rights cases – atty’s fees are taxed to atty only, not to client
  VI.            §42 USC 1981a
a.      1991 amend: (a)(1)
                                                              i.      Can get  compensatory & punitive damages in addition to above;
                                                           ii.      Requires DT (intentional) under VII
1.       Does NOT apply to disparate impact claims (encourage π to call it disparate treatment)
b.      limitation of damages: (b)(3):
                                                              i.      Vary from $50,000 to $300,000 based on size of employer
1.       Jury is not told about caps – judge will decrease verdict
2.       If much larger verdict anticipated, try to join other claims to override limit (and state claims, usu no caps there)
c.      Jury trial: (c): if there is claim for comp/punitive damages, then there can be a claim for jury trial
d.      Punitive damages: (b)(1)
                                                              i.      2 restrictions: (1) not available for govt agency; (2) available in DT when Δ acts with malice or reckless indifference
                                                           ii.      Amount of PD:
1.        look at how serious conduct was, how much punishment is needed, can look at how wealthy the D is;
2.       Make sure PD is const amount; 4X larger then CD suspect
                                                         iii.      Kolstad 1999
1.       Woman didn’t get promotion; claimed selection process sham
2.       Punitive damages I::
a.       not enough to show intentional disc by Δ; Δ must know what it’s doing violates the law to show malice/reckless indifference
3.       Agency:
a.       Make sure supervisor who disc acted as employer’s agent; employer generally would be liable for actions taken by managerial employee if they were doing what they had to as managers
b.      Rule: employer not liable for punitive damages of agent if it made good faith efforts to prevent disc
                                                                                                                                      i.      Encourages employer to follow

/c only Δ knows its motivation
                                                          iv.      PFC eliminates most common nondisc reasons Teamsters
                                                             v.      PFC is not supposed to be an onerous burden Burdine
                                                          vi.      discharge ( less hiring) cases: (56)
1.       Protected class
2.       Doing satisfactory work/ meeting employers legit expectations
3.       Was discharged
4.       was either replaced by someone not in protected group or under RIF can point to other factors
a.       But what if general layoff/downsizing?
                                                                                                                                      i.      Keep/(treated better) others outside of protected class or shift work to ppl outside of protected classs (like fired old but kept young)
b.      ex: fired for legit reason but can point to other ppl doing same thing but didn’t get fired;
Shift burden to Δ for rebuttal
                                                              i.      Δ must set forth clear, reasonably specific, legitimate nondiscriminatory reasons (vague reasons NOT ok)
                                                           ii.      Only the burden of production shifts
                                                         iii.      Δ doesn’t need to persuade court that it was actually motivated by those reasons; reason can be irrational; nonsensical; implausible; silly; fantastic; superstitious (as long as nondisc); honest mistake not violation
                                                          iv.      Burdine
1.       FootN 9 – can’t be in answer or attorney statement; must be ev
c.      Πs Showing of Pretext
                                                              i.      Π must show Δ reason a pretext (a reason given in justification of a course of action that is not the real reason) by showing:  
1.       (1) reasons given by Δ not believable (jury may, but is not required to, infer disc from this), &/or
2.       (2) disc was more likely the real reason behind decision;
a.        “honest belief rule”: q is not whether asserted reason is true but whether Δ believed it to be true when it took the challenged action;
                                                                                                                                      i.      mere fact that D was lying in its given reason DOES NOT compel that D was acting disc Reeves;
1.       Pretext plus: require P to introduce additional ev of disc, even if π had a PFC & shown D’s reason was not true Hicks
                                                           ii.      Can meet this standard either:
1.       (1) directly pointing to any ev that tends to show that real reason was disc or
2.       (2) indirectly showing employer reason is not worthy of credence Burdine
a.       Method of showing pretext:
                                                                                                                                      i.      Prior treatment of π
                                                                                                                                    ii.      Δs prior stats: look at min # of Δ
                                                                                                                                  iii.      Failure to follow procedures: were established rules broken to not allow nonmin person in? (*some cts say no)
                                                         iii.      Ex of Pretext:
1.       Employer changes explanation for challenged action bw time of decision & time of trial
2.       Reason offered for decision was applied only to Π but not other similarly situated employees
3.       Ev showing hire/promotion of less qualified applicant may be probative of pretext if Π shows she was objectively and substantially better qualified
                                                          iv.      Ex of Not Pretext:
1.       Employer was mistaken or relied on incorrect info – GF bus decision (even if mistaken or unwise)
2.       Biased comments unconnected with employment decision and that can be regarded as “stray remarks” – admissible but alone not enough for pretext
                                                             v.      Π Bears Burden of Persuasion Burdine
1.       Rejection of proffered reasons will permit trier of fact to infer ultimate fact of intentional disc, no additional proof of disc required –
a.       BUT rejection of Δs proffered reasons does not compel judgment for Π (Hicks)
2.       Whether judgment as a matter of law is appropriate depends on:
a.       Strength of Πs PFC
b.      Probative value of proof that Δs explanation is false
c.       Any other relevant ev
d.      McDonnell:
                                                              i.      Black P laid off RIF; during period of layoff participated in protests against employer; D advertised for mechanics after protest; P applied but was turned down; decision was based on participation aimed at activity (illegal acts)
                                                           ii.      I:-whether refusal to rehire him was based on his race?
                                                              i.      Prove directly
1.       Discriminatory reason more likely motivated Δ
                                                           ii.      Prove indirectly
1.       Δ’s reason is not believable